Parliamentary sovereignty

Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty, and is supreme over all other government institutions, including executive or judicial bodies. The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by written law (in some cases, even a constitution) or by precedent.

Parliamentary sovereignty may be contrasted with the doctrines of separation of powers, which limits the legislature's scope often to general law-making, and judicial review, where laws passed by the legislature may be declared invalid in certain circumstances.

Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

—A.V. DiceyIntroduction to the Study of the Law of the Constitution (1885)

During the 17th century the idea grew in England that Parliament (House of Lords and House of Commons) shared in the sovereignty, based on an entirely erroneous notion of the history of parliament.[3] It was not until the changing of the Coronation Oath in the Coronation Oath Act 1688 as part of the Glorious Revolution that Parliament was recognised as part of the constitutional structure, with laws being considered to emanate from parliament and not just the King.[4] The Bill of Rights was passed the following year which protected certain rights of the parliament.[5] After 1689 English parliamentary supremacy began to be seen in the relation of the English parliament to those of Scotland and Ireland. The Act of Settlement 1700 made a presumption upon Scotland: the Scots retaliated with the Act of Security 1704, which was countered by the Alien Act 1705: the issue was settled by the Union of English and Scottish parliaments in 1707 which created a new British parliament, though "in essence it was just an extension of the English parliament".[6] It is arguable whether the concept of parliamentary supremacy arose from the Acts of Union 1707 or was a doctrine that evolved thereafter.[7] The autonomy of the Irish parliament also came under attack and the Declaratory Act 1720 made the Irish parliament a dependency. The so-called Constitution of 1782 removed British parliamentary supremacy over Ireland for a short period but then the Irish parliament was merged with Britain's in the Acts of Union 1801.

The doctrine of parliamentary supremacy may be summarised in three points:

Parliament can make laws concerning anything.

No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).

A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.

Some scholars and judges have questioned the traditional view that Parliament cannot bind itself, arguing that it can impose procedural (or "manner and form") restrictions on itself, since the legislature must be constituted and regulated by legal rules.[8]

The notion of parliamentary sovereignty began to be challenged with the Parliament Act 1911 which changed the nature of what was meant by parliament, as Dicey regretfully noted in the Introduction to the 8th edition of his Introduction to the Study of the Law of the Constitution (1915), but that while the reality was now Cabinet and political party were supreme (pp lxxii–lxxiv), in law parliament was still sovereign albeit that "the share of sovereignty" of the Commons had increased (p xlii).

Some jurists have suggested that, following the Act of Union 1707, the principle of parliamentary sovereignty may not apply in Scotland. Although no Scottish court has yet openly questioned the validity of an Act of Parliament, certain judges have raised the possibility. Thus, in MacCormick v. Lord Advocate, the Lord President (Lord Cooper) stated that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law", and that legislation contrary to the Act of Union would not necessarily be regarded as constitutionally valid. Also, in Gibson v Lord Advocate, Lord Keith was circumspect about how Scottish courts would deal with an Act, which would substantially alter or negate the essential provisions of the 1707 Act, such as the abolition of the Court of Session or the Church of Scotland or the substitution of English law for Scots law.

The doctrine of parliamentary supremacy, in English Law, has been upheld in 2005 by Lord Bingham in the case of R (Jackson) v Attorney General:

The bedrock of the British Constitution is … the Supremacy of the Crown in Parliament.[15]

However there is a distinction to be made between legal sovereignty and political sovereignty. Parliament is not politically sovereign, which means that if Parliament does pass unpopular or oppressive legislation, then it may not be applied in practice; for example, the various civil servants who administer laws within government departments may be relied upon to use any loopholes and vague language which exist in a Bill to get around unwanted areas, and the judiciary is likely to purposefully interpret and create precedent for said laws in a similar manner. However this does not necessarily mean that Parliament is not legally sovereign. It is argued that nonetheless Parliament can legally pass any legislation it wishes. This point is made clearly by Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts would not hold the Act of Parliament invalid.'[16]

In recent years some judges and scholars in Britain and New Zealand have questioned the traditional view that parliament is sovereign.[17] Others, however, have rejected these arguments.[18] Various constitutional changes in the United Kingdom have influenced the renewed debate about parliamentary sovereignty:

The UK's membership of the European Economic Community, later the European Union, from 1973. The EU represents, as the European Court of Justice ruled in 1963 in the case Van Gend en Loos, a "new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields". The UK became part of that legal order, though as UK membership of the EU has been brought about through Acts of Parliament – principally the European Communities Act 1972 – Parliament could, as a matter of UK law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. The European Union Act 2011 reaffirmed that the sovereignty lied with the British Parliament, with section 18 stating: "Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act."[19] The Act also requires that a referendum be held when more powers are transferred to the European Union (though this can be repealed with another Act of Parliament). Alternatively, an Act to withdraw from the European Union could be passed in parallel with the withdrawal procedure laid down in Article 50 of the Lisbon Treaty, whereby a Member State would notify the European Council of its intention to secede from the Union and a withdrawal agreement would be negotiated between the Union and the State. The Treaties would cease to be applicable to that State from the date of the agreement or, failing that, within two years of the notification.

Following the case of Thoburn v Sunderland City Council certain statutes are perceived to be protected as Constitutional Statutes. The case involved amendments to the Weights and Measures Act 1985 by the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 pursuant to Directive 80/181/EEC. This stated that Imperial measurements could be displayed so long as the metric measurements were displayed in larger type beside them. Thoburn was convicted for only displaying Imperial measurements. In his defence he argued that allowing even limited use of Imperial measurements was inconsistent with the European directive and therefore in contravention of Section 2(2) of the European Communities Act 1972, and that the relevant section of the 1972 Act had therefore been implicitly repealed. However, the judgement by Lord Justice Laws held that certain statutes of constitutional importance, including Magna Carta and the European Communities Act 1972, could not be repealed by implied repeal. The case also introduces the concept of a 'hierarchy of acts', which is used in other European countries,[20] to English constitutional law. However if Parliament did make its intention to overrule any statute express then any statute can be repealed, and so sovereignty is preserved.

The enactment of the Human Rights Act 1998 which incorporates part of the European Convention on Human Rights into domestic law. The Act gives UK courts the power to issue a declaration of incompatibility where they believe that the terms of an Act of Parliament are in contravention of the rights guaranteed by the Human Rights Act. The effect of the declaration is not to annul the contravening Act but to send a signal to Parliament which may then choose to amend the offending provision. This does not endanger Parliamentary sovereignty because Parliament may choose not to amend the offending provisions. As with the UK's membership of the European Union, the principle of parliamentary supremacy means that Parliament can at any time vote to repeal the Human Rights Act, and indeed the UK's ratification of the Convention itself.

However, Parliament may theoretically withdraw from commitments it has made or repeal any of the constraints it has imposed on its ability to legislate.

"In Australia, the idea of Parliamentary Sovereignty must be understood in the context of the rigid limits and boundaries imposed by the federal Constitution, and to some extent by the State Constitutions as well."[21]

The Constitution confers the power to make laws on the Commonwealth Parliament. However, the power of the Commonwealth Parliament to make laws is limited to particular subjects. S128 of Federal Constitution prescribed the mode to alter the constitution, which further restricted the power of the Commonwealth Parliament.

The State Parliament Power is approximate to Dicey's conception of Parliamentary sovereignty [22]

There are procedural limitation, which is the entrenchment of restrictive legislative procedure. s6 of Australia Act states laws concerning the "constitution, power or procedure of the parliament" is invalid unless it passed in the manner and form prescribed by the legislation made by the Parliament.[23] However, restriction of this kind is not inconsistent with parliamentary sovereignty.

The constitutional allocation of powers between federal(commonwealth) and state is similar to that in the United States. The supremacy clause (s109 of the Constitution) gives commonwealth laws precedent over state laws. So the state law-making power is constrained where Commonwealth has concurrent law-making power. Furthermore, regarding to the subject matters which Commonwealth has concurrent legislative power, Commonwealth parliament can 'cover the field', which means Commonwealth can by express words or implication excludes the operations of state laws.[24]

Commonwealth has exclusive legislative power over the subject matters listed in ss 52, 92 of the constitution, which means state cannot make laws in these areas.

Also under s96 of the Constitution, Commonwealth can use financial assistance to entice states to refrain from exercising their legislative powers, such as refrain from collecting income tax [25]

In summary, neither states nor commonwealth in Australia has true parliamentary sovereignty. Commonwealth parliament is created by the constitution, and only has enumerated powers. States legislative power is inherent, but restrained by federal constitution, state constitution, and commonwealth powers.

Legislatures of Canadian provinces are sovereign within matters that are not delegated to the federal government. Provincial legislatures can make and modify their own codified constitutions by simple majority, as British Columbia did. Other provinces have uncodified constitutions like New Zealand and the United Kingdom.

According to the constitution of Finland sovereign power lies with the people, represented by the parliament.[26] As the highest organ of government the parliament holds supreme legislative power and can override a presidential veto and alter the constitution. There is no constitutional court and the supreme court does not have an explicit right to declare a law unconstitutional.

By principle, the constitutionality of laws in Finland is verified by a simple vote in the parliament. However, the Constitutional Law Committee of the parliament reviews any doubtful bills and recommends changes, if needed. In practice, the Constitutional Law Committee fulfils the duties of a constitutional court. In addition to preview by the Constitutional Law Committee, all Finnish courts of law have the obligation to give precedence to the constitution when there is an obvious conflict between the Constitution and a regular law.

The power to alter and amend the constitution is vested with the parliament, requiring approval either by a two-thirds majority in a single parliament if the proposed alteration is first declared to be urgent by a five-sixths majority of the same parliament, or by a slower procedure of first passing the amendment by a simple majority in the then current parliament and then passing the amendment by a two-thirds majority in the following parliament that convenes after a general election. A Finnish peculiarity is that the parliament can make exceptions to the constitution in ordinary laws that are enacted in the same procedure as constitutional amendments. An example of such a law is the State of Preparedness Act which gives the Council of State certain exceptional powers in cases of national emergency. As these powers, which correspond to U.S. executive orders, affect constitutional basic rights, the law was enacted in the same manner as a constitutional amendment. However, it can be repealed in the same manner as an ordinary law.

Executive power is shared by the President of the Republic and the cabinet. The latter must rely on the confidence of parliament. From the independence of Finland in 1917 up to the constitutional reform of 1999, the president held considerable executive powers, and in particular was able to call a re-election of the parliament at will. In order to strengthen the role of the parliament as the highest organ of government, the constitutional reform constrained most of the presidential powers to be exercised only on the advice of the cabinet.[27]

The concept of parliamentary sovereignty in New Zealand is derived from that in the United Kingdom:

The constitutional position in New Zealand [...] is clear and unambiguous. Parliament is supreme and the function of the courts is to interpret the law as laid down by Parliament. The courts do not have a power to consider the validity of properly enacted laws.[29]

In recent years, some legal experts have questioned parliamentary sovereignty.[30] Moreover, a few laws and conventions exist that limit the exercise of parliamentary sovereignty. For example, the maximum term of Parliament and some other matters relating to the electoral system may only be altered by a parliamentary supermajority or by a majority in a popular referendum.

^Berry, Elspeth and Hargreaves, Sylvia European Union law Oxford University Press 2nd edition (2007) p39 "The national courts are therefore obliged to give effect to those Treaty obligations, even if this means disapplying national law."

^Turpin, Colin & Tomkins, Adam British government and the constitution: text and materials Cambridge University Press (2007) p 335

^Taylor v. New Zealand Poultry Board [1984] 1 NZLR 394 at 398 per Cooke J; Sir Robin Cooke "Fundamentals" [1988] New Zealand Law Journal 158; Lord Woolf "Droit Public – English Style" [1995] Public Law 72; Sir John Laws "Law and Democracy" [1995] Public Law 72; Sir Stephen Sedley "The Constitution in the Twenty-First Century" in Lord Nolan and Sir Stephen Sedley (eds.) The Making and Remaking of the British Constitution (London, Blackstone Press, 1997); TRS Allan Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford, Clarendon Press, 1993); Dame Sian Elias "Sovereignty in the 21st Century: Another Spin on the Merry-go-round" (2003) 14 Public Law Review 148; Sir Edmund Thomas "The Relationship of Parliament and the Courts" (2000) 5 Victoria University of Wellington Law Review 9; Philip Joseph "Parliament, the Courts, and the Collaborative Enterprise" (2004) 15 King's College Law Journal 321; Jackson v. Attorney General [2005] UKHL 56 at [102] per Lord Steyn, at [104] per Lord Hope of Craighead, at [159] per Baroness Hale of Richmond.

^Lord Bingham of Cornhill The Rule of Law (London, Allen Lane, 2010); Jeffrey Goldsworthy The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford University Press, 1999).